The restoration of mutual
confidence amongst citizens interest, and between citizens and the State.

The strengthening of the
underpinnings of a just and democratic society

We are mindful that our
recommendations should have relevance and be meaningful to citizens living in
all parts of Sri Lanka. Priority must be given at all times to avoidance of
situations of disappearances arising. The security forces and the police are
necessary adjuncts of a State. They are required for the protection of the
state and the protection of the citizens of the State.

The average citizen looks
to them for protection. The tragedy of Sri Lanka lies in the distortion of
relationships between the citizens and the security forces including police,
which has resulted from the acts of both politicians and subversives.

The paragraphs following
will consider the changes required, whether by way of changes to existing
institutions and procedures or by way of the establishment of new institutions
and procedures, for the realization of the objectives as rightly identified in
the Southern Commission Report quoted above.

1. Provisions relating
to Arrest, Detention and Transfer

The following
recommendations shall be applicable to all arrests, detention and transfers,
irrespective of whether they take place under the usual provisions of law or the
extraordinary provisions under the Emergency Regulations and the Prevention of
Terrorism Act : -

1. The Duty to Record
Arrests, Detentions and Transfers:- All arrests,
detention and transfers must be recorded, in the books of the arresting
authority immediately with the event.

2.The Duty to Inform :- The security forces including the police must
inform the nearest Police station forthwith of all arrests made by them.
There shall be a concomitant duty on each police station to maintain a register
of such notifications. The information to be recorded at the police station
must contain the following particulars :-

(i) Name of informant and
other particulars of Rank, Regiment, and Army camp/Police station.

Information to Divisional
Secretary – Additionally there should be a duty cast
on Officers-in-Charge of the Police Station or the Army Camp which was the
arresting authority to submit to the Divisional Secretary weekly a list of
persons arrested, detained or being transferred with particulars including such
person’s permanent address. There shall be concomitant duty on the Divisional
Secretary to maintain a register of such information received which will be
available to relations, lawyers or other persons/organizations with a legitimate
interest in such information.

Duty to inform the Human
Rights Commission

Her Excellency the President has already issued a directive to
Heads of Armed

“Every officer who makes
an arrest or order of detention as the case may be, shall forthwith, and in any
case not later than forty eight hours from the time of such arrest or detention,
inform the HRC or any person specially authorized by
the HRC, of such arrest or detention as the case may be, and the place at which
the person so arrested or detained is being held in custody or detention,”

However, the penalty for
non-compliance with this directive is unclear and statistics of compliance are
unavailable. This Commission accordingly recommends that the penalty for
non-compliance should be clearly specified and that it should cover
Chain-of-Command Responsibility, in respect of non-compliance and that the
IGP be required to compile and make available to the
Human Rights Commission statistics of compliance.

3. The Duty to produce
before the Magistrate within 24 hours: - The
requirement that all persons taken into custody be produced before the
Magistrate within 24 hours, which was a long-standing salutary feature of law,
was rendered inoperative during this period concerned in respect of the many
persons in detention under Emergency Regulations and the prevention of examined
by the Supreme Court in the exercise of its fundamental rights jurisdiction.
The 24-houra rule should be re-introduced without delay. Additionally, the
Magistrate must continue to be kept informed of any change in the place of
custody, transfer out of the Magistrate’s jurisdiction, and release.

The Magistrates Court shall maintain a written record of such
information, which will be available for perusal at the Magistrate’s Courts.

4.The duty to issue a Receipt of Arrest:- The arresting officer must give
at the time of arrest to a family member or friend of the person arrested, a
Receipt of Arrest. This receipt must contain the name of the person arrested,
date, place, officer arresting with rank and place of intended detention. A
copy of this Receipt of Arrest is to be given in writing to the detainee
himself.

5.Detention

Place of Detention:- “I
looked for him all over the country” was a familiarstatement in the
evidence of the many petitioners before the Commission. We welcome the fact that detention is required to be only at a
place which is designated by the relevant authority to be “an authorized place[ii]”
of detention.

(i)That adequate
publicity be given of the authorized places of detention[iv]:

(a) At a central regional
office eg. The Government Agent’s office or the

Kachcheri.

(b) Through public display
at the Magistrate’s Courts, the Divisional Secretary’s

offices and the Grama
Niladharis offices concerned.

(ii)That the regulation should include the requirement of
prompt handing-over to the custodial authorities:

(a) That members of armed forces hand over
persons arrested by them to the officer-in-charge of the nearest Police Station;
and

(b) Custody of the persons
under arrest be handed over to the prison authorities as soon as possible and
this be on a valid detention order. The task of the prison authorities is
detention, independent of any investigation process that may be involved.

(a) and (b) above shall apply equally to a change of place of detention.

(iii)The Magistrate be required to visit alleged places of
detention brought to his notice.

6. Visits by Magistrate
of places of detention. This Commission recommended the Magistrate be required
to visit all places of detention once a month. A
record of the Magistrate’s monthly visit and comments, if any, and of any
special visit made by the Magistrate pursuant to his Habeas Corpus Jurisdiction
as proposed in this report, must be maintained at the places of detention as a
record available for perusal by lawyers, Court, and persons or organizations
with legitimate interest in the information.[vi]

7. Conditions of Detention. The Prison
Rules should apply, including the right to communicate with the detainee’s
family and with legal counsel as stipulated in U.N. Standard Minimum Rules for
the Treatment of Prisoners.

It is recommended that :

(a) The Prison Rules are made applicable to the detention of
persons under the Emergency Regulations, including the right of the detainee
to communicate with the family with legal counsel as stipulated in UN
Standard Minimum Rules for the Treatment of Prisoners.[vii]

(b) That the detainee be
produced before the Magistrate within 24 hours of the arrest, even if it is
necessary to be returned to police custody for investigation.[viii].
This system is prevalent in Japan today.[ix]

8.Release: -Release from detention must be –

(i) Through Courts; or

(ii) To the families

When release is to the
family, a family member must sign the record of release. The Magistrate’s Court
and the Divisional Secretary must be informed, including particulars of the
person to whom the detainee was released.

ii.
The effect of a failure to abide by rules regarding Arrest/Detention/Transfer
“We checked everywhere, the Police, the Army, the ICRC, the Presidential
mobile Secretariat” was another familiar statement before the Commission, while
Presidential Directives specify clearly that every member of the armed forces
and of the police force shall ensure that fundamental rights of the persons
arrested or detained are respected and the present Emergency Regulations provide
a procedure for dealing with a non-adherence of the Regulations, it is vital that the State itself is seen to be alert to the
preservation of these rights by way of an institution of action in respect of
alleged violators.

1.A Criminal Prosecution:
- The failure or refusal on the part of the
Police to record arrests, detentions and transfers by the police and security
forces, and to record complaints of abductions if followed by an involuntary
disappearance, should be declared a cognizable offense by Act of
Parliament. A criminal prosecution shall take place without delay.[x]

2.A right of Private Plaint – The
failure to record arrests, detentions and transfers coupled with the refusal to
record complaints of involuntary removals or disappearances as it happened in
the period under review lie at the root of the phenomenon under consideration.
It is a frontal attack at this root hat requires attention. We accordingly
recommend that the failure or refusal per se to perform the
rules envisaged above be declared to be acts entailing penal consequences, with
a right to file a private plaint in a virtual complainant, whether and
individual or a representative institution, in the even of the police failing to
institute proceedings. The recognition of an
institutions as having locus stand to institute proceedings may serve to
translate into practical terms the concept of the community concern in respect
of the failure on the part of state agencies on whom public trust has been
reposed.

3.A Disciplinary inquiry – A failure to abide by the Regulations without
more should make the officer concerned subject to a disciplinary inquiry which
shall be conducted by an inquiring officer from outside the service to which the
alleged defaulter belongs. An absence of Disciplinary Inquiry for
breaches of these Regulations was a feature of the era under consideration
which. Regrettably. Continues and must be addressed. It
is the duty of superior officers to control subordinates and ultimately create a
culture of accountability in the security forces. If follows that superiors
should themselves be subject to disciplinary action for a non-performance of
this Duty.

4.In-Service consequences of non-adherence to Regulations- That penalties
of suspension, termination of the service, loss of promotional rights and other
disciplinary measures should invariably ensue from a
finding if the disciplinary inquiry that the officer has violated the
Regulations, is the best corrective factor for the prevention of abuses.[xi]

5.Entry in Service Record- This is required for the success of any
assertion of the principle of accountability whether at the level of the
individual or at the level of the Chain-of-Command. As at prese4nt, neither
a finding of the Supreme Court that an Officer is in breach of the Fundamental
rights of a citizen, nor a finding of responsibility against an officer in a
Habeas Corpus application, is entered in his service Record. This, coupled with
the absence of Disciplinary Inquires into alleged breaches of Regulation in this
field, have resulted in several instances of promotions taking place without due
attention being given to these incidents of proven abuse and breach of
regulations. The resultant twin consequences are a disenchantment on the part of
the general public in the institutions of the police and security forces (as
opposed to the individual officer.) alongside the growth of a tendency on the
part of the members of the police and security forces to view the attempted
re-assertion of the principle of accountability as a political ploy of
playing-to the masses.

In instances of judicial
review of administrative action by the Supreme Court in complaints of transfer
and non-promotion by Officers, the absence from Service Records of such
crucially relevant particulars can well result in undue weightage accruing to
the petitioner-officer’s allegation of political discrimination. Moreover, more
than one instance has been brought to our attention of the Print Media, misled
by alleged particulars given in a petitioner-officer’s Petition to Court, in its
turn misleading the General Public.

We accordingly recommend-

(i) the Service Record of
an Officer should include instances where the Supreme Court has found the
Officer to be in breath of Fundamental Rights, and a finding of responsibility in Habeas Corpus Applications.

(ii) that the failure to
abide by these regulations when proved shall be entered in the officer’s
service record.

(iii) Speedy Action based on the findings of the Disappearances
Commissions

There is an urgent need for
speedy investigations based on the findings of the four Disappearances
Commissions. The dangers that lurk from a delay in the conduct of
investigations is well illustrated by a recent decision of the Supreme Court
where a Police officer’s transfer was stopped on an application by him that his
transfer was a violation of a Fundamental Right. He had submitted to Court that
he had a good service record and that the transfer was mala fide. In fact
two Commissions of Inquiry into Disappearances have made recommendations in the
light of the evidence before them that this officer was responsible for several
disappearances and had recommended legal action and disciplinary proceedings be
initiated against him. But this fact was not before the Supreme Court when it
considered the Fundamental Rights application of the officer. This would not
have happened but for the delay in taking steps to prosecute this officer and
take disciplinary action against him as recommended by the Disappearance
Commissions. If such action had been taken this police officer could not have
pleaded that he had a clear record of service.

(iv) The Enlargement of the Efficacy of Writ of the Habeas Corpus

The need for speed of
Response:- The writ of Habeas Corpus is a main plank
in the prevention of disappearances from custody. First and foremost is the
requirement of speed of response. The opportunity to invoke this jurisdiction
no sooner a situation of unacknowledged custody arises, is the first requisite.

Enlargement of the
Magistrate Court Jurisdiction in HCA matters:- Your
commissioners recommend the enlargement of the jurisdiction of the Magistrate
Court to empower the Magistrate to receive the affidavits of the petitioner and
his witness; to register the complaint; to entertain the petitioner’s
application that the Magistrate visits the place of alleged unacknowledged
detention; to forward to the High Court the affidavit and the notes of visit
etc. The existing jurisdiction to record evidence once a matter is referred to
the Magistrate Court by the High Court, will continue, and the High Court shall
continue to exercise jurisdiction in respect of the declaration of
responsibility and compensation as at present.

A Special Division of the
Magistrate’s Court Colombo:- It was the increase of
arrests and detentions under the Emergency Regulations during the period
relevant to this Commission that saw the use of the writ of Habeas Corpus as a
challenge to the use of powers under the Emergency Regulations. A total of 2925
Habeas Corpus applications had been filed during the years 1988 to 1997.

The effectiveness of the remedy of Habeas
Corpus became questionable however in view of the delay attendant on obtaining
the relief. A perusal of the break-up of the Habeas Corpus
applications filed and pending. (vide chart) shows that out of 2625 cases have
been filed between 1988 and 1997. Of those 272 have not been concluded as yet,
while most of the applications were disposed of after a lapse of over 5 years.
In most of the areas outside the Eastern Province
the facility for Habeas Corpus Applications to be filed in the High Court was
not availed of. This facility made it easier for petitioners to have access to
the Courts to locate abducted persons. However, the Habeas Corpus applications
received by the High Court of Batticaloa appears to have been dealt with more
expeditiously, out of 49 filed between 1994 and 1997, 44 have already disposed
of.

Particulars of Habeas Corpus
Applications filed between 1988 and 1997

Year

No.HCA Registered

1988

505

1989

483

1990

74

1991

108

1992

503

1993

543

1994

376 09*

1995

130 38*

1996

33 01*

1997

121 01*

Total

2876 49*

*These are complaints filed
in the High Court of Batticaloa.

It is recommended that a Special Division of the Magistrate’s Court Colombo should
be established in order to deal with the Habeas Corpus Applications pending in
the Court of Appeal Since 1988.[xii]
Petitioners must feel they have had the attention of the Courts. It is
important that notices should go out anew to the petitioners from the
Court of Appeal in respect of their applications.

The Consequences of an
adverse finding on a Habeas Corpus Application: should not be confined to the
payment of damages by the State alone, but should include disciplinary action
against the individual officers responsible. Where individual officers and found
responsible for such violations the following consequences should follow:-

(a)The human rights
record of the person responsible, be it a member of the armed forces of the
police, should be taken into account in the consideration of promotions of such
personnel.

(b) Such person who is under
investigation for involvement in disappearances should be interdicted and
suspended from active duty until inquiries are completed.

(c) In any case those found
guilty should not benefit from indemnity legislation.

Problems of recovery of
sums awarded by Court and arisen even after
successfully completion of an application. IN many cases the respondents had
appealed against the order and had either died while the case was pending or
left the Island before the conclusion of the appeal. Consequently the
applicants had not got the benefit of the awards. It
is therefore recommended that,

(a)The respondent be
required to deposit the sum awarded in Court pending
appeal;

(b) The obligation to pay the award be available
against the respondents assets and if he died, against his estate.

Legal Aid: The Remedy of Habeas Corpus should be made affordable to any
citizen irrespective of his financial resources. We therefore recommend that Legal Aid organizations providing their services
to applicants for a writ of Habeas Corpus be made recipients of State grants.[xiii]

(v) Emergency Regulations

The expansion of the powers
given under the Regulations to the Police and the Armed Forces accompanied by
the reduction of the occasions and degree of scrutiny by the judicial system,
assisted in crating an environment within which the incidents reported to the
Commission took place. This Commission accordingly
recommends the utilization of the powers under the state of emergency be
minimized.

The Commission further
recommends that the underlying principles to the Regulations made
under emergency powers should be as follows: -

Scrutiny of Emergency
Regulations: - This Commission recommends a
mechanismbe set up within Parliament entrusted with the specific
task of the scrutiny of each Regulation before its monthly promulgation by
Parliament, and that Human Rights Groups be given opportunity to make
submissions in the course of the month to this structure. Currently, whilst
the extension of the Emergency itself is subjected to discussion by Parliament
on a monthly basis and the Public Security Ordinance provides that parliament
may revoke, amend of modify a regulation, a scrutiny of the Regulation rarely
takes place

Publicity to the content
of Regulations:- The Regulations which should be
worded in clear and unambiguous language and be drafted under the supervision of
the Legal Draughtsman, should be given wide publicity through the media each
month at the time of their renewal.[xiv]

Enlargement of the
Magistrate’s Power in respect of Detention Orders: The
Commission recommends that the Magistrate be empowered when inquiring into the
extension of the Detention Order to require the Secretary to provide
supplementary information regarding the Detention Order, for example
information on the continuing necessity of detention.Strict
observation of the pre-requisites for the Regulations to become operative:
The pre-requisites for the regulations to become operative are the
pre-requisites, also, for the prevention or the limitation of disappearances and
related abuses. While the Supreme Court has repeatedly emphasized that the
requirements laid down in the Regulations for their provisions to come into
operations “were not intended for merely cosmetic purposes, but for the sake of
fulfilling the basis obligation of the State to ensure the personal security and
liberty of all persons [xv]”,
a concerted and continuous effort of compliance is required on the part of all
branches of the Security Forces and the Police, for the prevention of
Disappearances and a resurgence of the conditions that predisposed
Disappearances.

(vi) The re-assertion of
the principle of Chain-of-Command Responsibility: The efficacy of the
preventive measures considered here, whether of criminal liability, disciplinary
inquiries, entry in service records etc, would be set at nought without the
re-assertion of the fundamental principle of the accountability of superiors, or
“Chain-of-Command responsibility”. It is very important that very clear
directions are made available for the future, defining the accountability of
Chain-of-Command structures. Officials with
Chain-of-Command responsibility who order or tolerate “disappearance” by those
under their command should incur themselves criminal liability invariably.[xvi]

(vii)
The need to dismantle “Alternative Structures of Command” and the Prevention of
their coming into existence.

This Commission finds that
an alternative structure came into being in the Police during the relevant
period, with Officers being promoted through political patronage. The
elimination of alternative structure of command is a prerequisite for
prevention. In this context we recommend that steps be taken without delay
against miscreants identified by the Commissions or on complaints made in
the ordinary course of investigation. It follows that legal action will
ensue where warranted.

(vii)
The Elimination of the Possibility of the Maintenance of a “Private Army” at
State expense

The maintenance of a
considerable number of armed personnel as security guards etc. of politicians at
state expense, was a feature of the period under consideration, which requires
to be dismantled immediately. Persons selected by the politicians were given
the rank and emoluments of Army Personnel. They were paid by the Army., armed by
the Army, but not controlled by the army though nominally employed in the Army’s
function of the protection of society from its enemies. These “soldiers” saw
their role rather in the sphere of moving against personal enemies, acting for
personal benefit or moving against the opponent of the politicians concerned.
The security of public figures should be provided by a special security
coordination Division of the Police. Officers attached to this division should
be subjected to the command and supervision of superior officers in the service
and be subject to periodical transfer.

(ix)
A Police Lay-Visitors’ Panel each Police Area

It is necessary to
re-establish community-based forces and procedures to which the citizens can
turn when faced with the possible misuse of police powers i.e. State power.
Such community-based structures have an invaluable part to play in the areas
both of monitoring and of preventing the misuse of powers.

To serve this function we
recommend a Penal of Lay-Visitors from each Police station area, with powers to
speak to detainees, to check conditions of detention, to check records of police
station in respect of detention, to liaise in the presentation of complaints to
the police station, to liaise with the SSP/DIG of the area, to accompany to the
police station when requested to do so, to make complaints themselves in
a representative capacity, inclusive of impending problems, the coordination at local level with the Human Rights Commission
could be an aspect of their work with importance for the restoration of Law and
Order nationally.

(x)
A Citizens’ Advisory Bureau:

A System of Citizens
Advisory Bureaus located in the vicinity of every Divisional Secretariat would
be a valuable aid to the whole community for advice on various matters. In the
context of disappearances specifically such a system is required for the
assistance of bereaved persons on where to go and what to do to obtain the
requisite assistance.[xvii]

(xi)Dissemination of the
Reports of the Disappearances Commissions:

Wide publicity should be
given to all the Reports of the Commissions of Inquiry into Disappearances, with
their contents translated into Sinhala and Tamil. There has already been a delay
in publishing the earlier Reports in Sinhala and Tamil. The absence of an
adequate number of copies of these Reports and the absence of translations in
Sinhala and Tamil defeat the purpose of appointing fact finding Commissions.
The people of the Country must have access to the findings of these
Commissions. These Reports form the nucleus of a Historical Memory of this
ear in Sri Lnka. The translations should be made available to all school
libraries and reading rooms in Community Centres, islandwide, at State Cost.
The need to create a culture of respect for Human Rights requires that text
books on both History and Social Studies should include the findings of these
commissions.

(xii)
The Manifestation of the requisite Political will

The three Commissions on Disappearances
appointed in November 1994 and the appointment of this Commission in June 1998
with islandwide jurisdiction, was an important manifestation of the Political
will to come to grips with the problems which the Commissions have found to
exist and the provision of the necessary infrastructure to enable the four
Commissions between them to give attention to every single
petitioner to them, evidenced the continuity of this intention.

This Country’s immediate
past history of non-prosecution of abuses of human rights despite the criminal
nature of such acts under the law of that time, makes clear that the several
prosecutions that have now commenced would not have been possible without the
political will that the principle of accountability should prevail in respect of
human rights abuses. That these prosecutions are taking place irrespective of
the date of abuse, and in a period of a confrontation with an armed group, is a
uniquely encouraging manifestation of the requisite political will, which must
continue to be reinforced.

The establishment,
concurrently, of a Human Rights Commission by legislative enactment
addresses the need for a structure with power to monitor situations of possible
abuse in the present and in the future –

“For the purpose of
discharging its functions the Commission may exercise any or all of the
following powers:-

(a)investigate, any
infringement or imminent infringement of fundamental rights in accordance with
the succeeding provisions of this Act;

(b) appoint such number of sub-committees
at Provincial level, as it considers necessary to exercise such powers of the
Commission as may be delegated to them by the Commission, under this Act;

(c) intervene in any proceedings relating
to the infringement or imminent infringement of fundamental rights, pending
before any court, with the permission of such court;

(d) monitor the welfare of persons detained
either by a judicial order or otherwise, by regular inspection of their places
of detention, and to make such recommendations as may be necessary for improving
their conditions of detention”;

The fact that this enactment
was passed by Parliament without division is a good augury for the future, as is
the appointment of Commissioners who between them, represent all ethnic,
religious and cultural diversities of Sri Lanka.

The vigorous enlistment
of civil society which is envisaged by the provisions
in the enabling Act for the use of Mediators by the Human Rights Commission for
the resolution of disputes, is an indicator of the political will, that civil
society should be a co-partner with the State in the restoration of normalcy to
our beleaguered land.

[i]Vide Annex XVI Her Excellency Directive dated July 11, 1997:
“to enable the Human Rights Commission of Sri Lanka ((herein after
referred to as ‘the HRC’) to exercise and perform its powers, functions and
duties and for the purpose of ensuring that fundamental rights of persons
arrested or detained are respected and such persons are treated humanely”

[ii]
From time to time such authorized places are published in the Government
Gazette.

[xiii]
At present state grants are only to the Legal Aid Commission which does not
handle Habeas Corpus Application. The Bulk of the Habeas Corpus and the
Fundamental Rights cases are handled by the BASL, MDDR and such other
organizations which do not receive any State grants.

[xiv]
This would enable the media to be a partner in the provision of publicity
and openness. Government Gazettes are very difficult to obtain and are not
readily available to the public.